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Ask the Lawyer: Yes, sex with a minor is a crime

Aug. 29, 2014 - 11:33AM   |  
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Q. My girlfriend was a few months shy of 16 when we broke up. My command recently found out that I had a sexual relationship with her, and now I’m facing a charge of aggravated sexual assault of a child. Does it matter that we loved each other and that she was the one who pursued me?

A. When a service member has a sexual relationship with a child over age 12 but under age 16, the back story of the romance is largely irrelevant.

Unlike rape of a child, which is punishable by life in prison or death, aggravated sexual assault of a child, for the most part, does not hinge on the conditions under which the sexual act occurred, such as the use of force or through grievous bodily harm. Rather, an offense of aggravated sexual assault of a child, punishable by up to 20 years in jail, is triggered when the service member engages in a sexual act with the child. The term “sexual act” is very broad, encompassing a range of types of sexual intercourse. Significantly, a service member convicted of this offense must also register as a sex offender.

But if a service member reasonably believed a child with whom he or she engaged in a sexual act was at least 16 years old, that could be raised as an affirmative defense, according to the Manual for Courts-Martial. Other factors, such as the child’s interest in engaging in the act or the loving nature of the relationship, would not qualify as an affirmative defense.

A service member can include such details in a request for clemency to the convening authority, but the government may point to such information as an indication that the member “failed to take full responsibility for his actions and did not completely appreciate the consequences of his misconduct,” as the Air Force Court of Criminal Appeals noted in U.S. v. Wayne A. Ellis (2013).

In that case, an Air Force senior airman repeatedly engaged in sexual intercourse with a 14-year-old girl. He was later convicted of, among other things, aggravated sexual assault of a child. In his clemency request, he claimed the girl “began to flirt with me and ... I really liked the attention. I let my guard down and saw her as an equal. Although I knew her age, she acted extremely mature.” The court upheld his conviction and sentence.

The airman first class in U.S. v. Seandale J. Chamblee (2014) also was convicted of aggravated sexual assault of a child, among other things, for engaging in sexual intercourse with his girlfriend when she was 15 years, 11 months old. Accompanying his clemency request were letters of support from the victim and her father — a reverend — but the Air Force Court of Criminal Appeals upheld his conviction and sentence.

These types of cases are often prosecuted by civilian authorities, since child victims and their families tend to be civilians. If convicted in a civilian court, troops are subject to administrative separation with an other-than-honorable discharge, and commands also can pursue separation before the trial is even over.

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to askthelawyer@militarytimes.com.

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